How to fight back against common problems in nursing homes

 Dementia Memory Lane
Use the Nursing Home Reform Act to fight back against common problems at nursing homes.

The Nursing Home Reform Act applies to every nursing home that accepts payment from Medicare or Medicaid, even if your parent or family member isn't eligible for either program and is paying privately.

Because Medicare and Medicaid are huge sources for payments, over 95 percent of nursing homes are governed by the Reform Act, according to Justice in Aging's Eric Carlson. Use that law to fight back against common problems at nursing homes, he says, such as: 

Discrimination against Medicaid-eligible residents. Nursing homes may say "Medicaid does not pay for the service that you want.” But according to the law, a Medicaid-eligible resident is entitled to the same level of service provided to any other resident. The law prohibits discrimination based on Medicaid eligibility. 

"By seeking Medicaid certification, a nursing home promises the federal and state governments that it will provide Medicaid-eligible residents with the care guaranteed by the Nursing Home Reform Act. It is completely hypocritical for the nursing home to accept Medicaid money for a resident’s care, and then turn around and tell the resident that the care will be inadequate because Medicaid payment rates are low," Carlson explains.

If the nursing home refuses, complain to the state inspection agency, raise the issue at a resident or family council meeting, seek assistance from the ombudsman or consult with an attorney, he advises.

Improper use of physical restraints. What you may hear: “If we don’t tie your father into his chair he may fall or wander away from the nursing home. There’s just no way we can always be watching him.”

Physical restraints can't be used for the nursing home’s convenience or as a form of discipline, but instead require an order from the resident’s doctor, not just a recommendation from the nursing home. Instead of restraints, the nursing home should explore increasing staffing levels, installing electronic monitoring, or meaningful activities available to combat boredom and energize residents, Carlson added.

Visiting hours restricted. The fact is that a resident’s family member can visit at any time of day or night. Under the Nursing Home Reform Act, a nursing home can't limit visiting hours for family members or friends — especially if they want to check on how their loved one is being treated in the evenings. Remind the nursing home of the law if they protest.

Financial liability. Nursing homes claim: “We can’t admit your mother until you sign the admission agreement as a ‘responsible party.’”

A nursing home can't require anyone but the resident to be financially responsible for nursing home expenses. Some nursing homes use “responsible party” signatures as a way of tricking a family member or friend into becoming financially liable, Carlson explains. Don't hesitate to refuse, assuming that the resident already has moved in. If they haven't moved in?

"A family member or friend can sign for the resident as an agent, in that capacity, without promising how the agent will pay the nursing home or complete a Medicaid application," he adds. Most courts won't enforce a responsible party under the new Nursing Home Reform law.

Refusal to accept Medicaid. Some nursing homes claim: “Even though you’re now financially eligible for Medicaid payment, we don’t have an available Medicaid bed for you.”

A  nursing home can certify additional beds for Medicaid payment, Carlson said. If the nursing home fails to obtain a Medicaid-certified bed, and instead tries to evict the resident for nonpayment when they become Medicaid-eligible financially, the resident has a good argument that nonpayment is the nursing home’s fault.

Eviction for being "difficult." Under the Nursing Home Reform Act, there are only five legitimate reasons for eviction: a resident has failed to pay; no longer needs nursing home care; the resident’s needs can't be met; the resident’s presence in the nursing home endangers others’ safety or health; the nursing home is going out of business.

Being "difficult” is not a justification. "Nursing homes exist in order to care for people with physical and cognitive problems. Most nursing home residents are difficult in one way or another," Carlson added. Some nursing homes evict a resident because they wander, have severe dementia or make loud sounds during the night.

"These evictions almost always are improper, because such residents belong in a nursing home. The fact that they are arguably 'difficult' does not mean that they should be evicted."

If Nothing Else Works, You Can Sue. Consumers can now sue nursing home facilities under a new rule issued by the Department of Health and Human Services. As part of a broad update to consumer protections, the new rule “prevents nursing facilities from taking advantage of people on the front end and having them sign things when they’re thinking about everything other than arbitration,” said Justice in Aging’s Carlson.

Disputes between residents and nursing home facilities go through arbitration, which have been criticized for favoring nursing home facilities in the past. The new rules are available online here  and went into effect Nov. 28, 2016.

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